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REQUIREMENTS AND POLICIES MANUAL

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    Title:

    Outside Employment and Consulting

    Publication date:

    11/5/2021

    Effective date:

    11/5/2021

    BRIEF

    Policy Summary

    Employees may engage in outside consulting and employment as long as such activities do not interfere with performance of their Lawrence Berkeley National Laboratory (Berkeley Lab or the Laboratory) duties, create a real or apparent conflict of interest, subject the Department of Energy (DOE), the University of California (UC), or the Laboratory to public criticism or embarrassment, or violate other DOE requirements. Prior institutional review and approval are required for consulting and employment activities related to the employee's laboratory work. All outside employment and consulting activities must be conducted without the use of Laboratory time, supplies, equipment, or facilities.

    Who Should Read This Policy

    This policy applies to all employees, including those working part time and variable time, and those who hold faculty appointments with a UC campus.

    To Read the Full Policy, Go To:

    The policy tab on this wiki page

    Contact Information

    Research Compliance Office
    [email protected]

    Title:

    Outside Employment and Consulting

    Publication date:

    11/5/2021

    Effective date:

    11/5/2021

    POLICY

    A. Purpose

    Lawrence Berkely National Laboratory (Berkeley Lab) employees owe their primary professional allegiance to the Laboratory, and are expected to conduct their time and work accordingly. This policy acknowledges the value of outside professional activities while recognizing the likelihood that some outside activities may cause real or apparent conflicts of interest or conflicts of commitment that need to be addressed.
    This policy establishes review principles and processes for employee participation in consulting, employment, and other professional activities outside of Berkeley Lab.

    B. Persons Affected

    This policy applies to all employees, including employees holding joint University of California (UC) faculty appointments and retirees, regardless of percent time employed or worked, or duration of employment.

    C. Exceptions

    This policy does not apply to honoraria given for one-time lectures or presentations (given to a broad audience) as long as the source of the honorarium is not the DOE or UC. Employees may not accept honoraria from DOE or UC sources, directly or indirectly.
    Institutional approval is not required for reviews performed for a U.S. public agency, such as federal agencies or public universities. Expert witness testimony in cases where none of the parties has any business relationship with the Laboratory does not require institutional approval, but should be done only after consultation with the Office of Laboratory Counsel. Review and approval of uncompensated outside business and professional activities for which an employee exercises no fiduciary responsibility and where the outside party has no business relationships with the Laboratory is at the discretion of the division. Any written agreement offered in connection with such uncompensated activities must be submitted to the Intellectual Property Office for review prior to signature.
    Other outside activities that are not covered by this policy and that are obviously unrelated to the Laboratory's interests do not normally need to be reported or approved. Examples include an outside job or business interest in retail sales, music, art, or residential real-estate sales. Employees who are undecided as to whether their outside activity must be disclosed in accordance with this policy may refer the question to the Research Compliance Office.

    D. Policy Statement

    1. General Policy
      1. Employees are required to obtain institutional approval prior to engaging in outside business and professional activities, such as consulting and service on science advisory boards or boards of directors, or employment. Approval is required for uncompensated service on boards of directors, and any other work in which an employee is responsible for the operation or oversight of an organization or company. See Sections D.2 to D.4 of this policy.
      2. Institutional review and approval are required for any of the following outside professional activities:
        1. Work with the potential to interfere with Berkeley Lab employment obligations.
        2. Work of any kind for a scientific or technical organization.
        3. Work involving an entity with whom the Laboratory does business or has the potential to do business (e.g., licensing, sponsored research, and subcontracts).
        4. Work or consulting that is in a subject area related to the employee's Laboratory work.
        5. Work paid by federal funds or by a unit of UC.
      3. With approval, employees may engage in these outside business and professional activities outside of Berkeley Lab hours and away from the Laboratory, as long as such activities do not interfere with performance of their Laboratory duties, create a real or apparent conflict of interest or commitment, or subject the DOE or Berkeley Lab to potential or actual public criticism or embarrassment.
      4. Employees are prohibited from engaging or participating in outside activities that are funded, sponsored, or supported by a foreign government talent recruitment program of a foreign country of risk.
      5. Employees are restricted from engaging in activities, compensated or uncompensated, sponsored by or affiliated with the government of a foreign country of risk. These "other foreign government sponsored or affiliated activities" require prior review and an exception approval by the Laboratory Director and the DOE.
      6. All outside business and outside professional activities for which this policy applies must be conducted without the use of Berkeley Lab supplies, equipment, or facilities. In general, employees are prohibited from engaging in any outside employment, activity, or consulting if that activity is sponsored or funded by any Berkeley Lab or UC entity or through any Berkeley Lab or UC contract. No amount of time due to the Laboratory may be devoted to private purposes, and no outside business or professional activity may interfere with the performance of Laboratory duties.
      7. Failure to comply with this policy, including the requirement to obtain prior approval before engaging in compensated outside professional activity, may result in disciplinary action, including suspension without pay and/or termination from employment, in accordance with the Laboratory's Corrective Action and Discipline policy.
      8. Policy concerning ownership or management interest in commercial entities with potential economic or technology connections to the Laboratory is covered in the RPM section on Employee Owned or Managed Business.
    2. Review and Approval Principles and Time Limits
      1. Principles
        1. The following considerations are made in determining whether a real or apparent conflict of interest exists:
          1. Incompatibility between regular duties and private interests.
            1. Employee outside business or professional activities must not be in competition with current or proposed Laboratory projects.
            2. Employee outside business or professional activities must not result in unfair competitive advantage to the outside business.
            3. Employee outside business or professional activities must not materially affect the Laboratory's dealings with the outside business or substantially affect the environment of the economic/technology business sector in which the employee or a near relative has a financial interest as defined by the UC Conflict of Interest Code.
            4. Employee outside business or professional activities must not limit the employee's responsibility to fully and promptly report significant Laboratory research and development information to the DOE.
          2. Conflict of Commitment. Employees are expected to devote their primary professional allegiance to Berkeley Lab. Outside work must be performed during an employee’s non-work hours, and sustained activities should not exceed 32 hours per month. This time limit will be adjusted proportionately for employees appointed at less than 100% time. Outside work for effort above this threshold must take approved leave; reductions in appointments should be considered for sustained amounts of outside effort beyond 32 hours per month. Exceptions to this time limit require specific approval from line management with concurrence by the Research Compliance Office.
          3. Protection of privileged and proprietary information. An employee engaged in outside professional activities must protect information, skills, or knowledge that is material to current or proposed Laboratory research or development work, and that is proprietary to the Laboratory and not yet published or in the public domain.
          4. Prevention of unauthorized transfer of scientific and technical information to foreign entities and governments.
      2. Annual Review and Approvals. Approval is required on an annual basis and whenever there is a change in the scope or terms of work. See Section D.3 below for the review process.
      3. Other Review Factors. In approving any individual activity, the total amount of outside professional activities may be considered.
    3. Review and Approval Process for Compensated Outside Business and Professional Activities. Compensated outside business or professional activities described in Section D.1.b.i–v require prior review and approval by Berkeley Lab management and institutional officials. Use the Request for Approval of Compensated Outside Professional Activity (COPA) process to obtain required approvals. In accordance with Contract 31 provisions, the Laboratory may provide the DOE Bay Area Site Office (BASO), and certain external funding sources, with information and/or copies of documents pertaining to compensated outside business or professional activities.
    4. Other Payments from Outside Organizations. Generally, employees are permitted to accept honoraria for lectures or presentations from sources other than the DOE or the UC (including flow-through funds). However, the California Political Reform Act imposes prohibitions and/or limits on honoraria for employees in positions designated by the UC Conflict of Interest Code. See the RPM policy on Designated Officials for details. Honorarium payments for one-time lectures do not require Laboratory approval under the Compensated Outside Professional Activity process; however, such income may trigger disqualification requirements. Any written agreement offered in connection with such one-time lectures must be submitted to the Intellectual Property Office for review prior to signature.
    5. Teaching and Other Services for the UC. Teaching of UC Extension courses is allowed, and does not require institutional approval. Other work for UC should be managed through a Multi-Location Appointment (MLA). Employees may not engage as independent consultants to UC.
    6. Services to the DOE. All service to the DOE, including Berkeley Lab employment, must not exceed 100% FTE. Service to the DOE and DOE M&O Contractors is generally managed through an Inter-Location Appointment.
    7. Review of External Technical Proposals Involving Laboratory Inventions. A Laboratory employee who is invited by the DOE or any third party to review a technical proposal that describes (1) his/her own invention/s or (2) any other Laboratory invention that the employee is aware of through, for example, previous knowledge of the invention or background intellectual property, will so inform the Intellectual Property Office (IPO) ([email protected]), which will evaluate the information and notify the BASO if the subject matter of the proposal involves an elected or waived subject invention in which the Laboratory holds or intends to elect title.
    8. Policy on Outside Professional Activities for the University Senior Management Group. Outside professional activities of Laboratory employees who are members of the UC Senior Management Group (SMG) are subject to certain additional special provisions. Consult your division's Human Resources Center for complete information concerning the necessary approval and reporting requirements pertaining to members of the SMG.
    9. Written Agreements and Intellectual Property. Under their signed Intellectual Property Acknowledgment, the University has certain rights to intellectual property arising from a Laboratory employee’s work. Therefore, if intellectual property may arise in the course of any outside activity or affiliation, under the terms of the UC-DOE Prime Contract for Laboratory management,  the outside organization must acknowledge the following or an equivalent paragraph to obtain Laboratory approval: 
      1. "It is recognized that (1) Consultant is an employee of the UC engaged in certain work conducted by the University at the Lawrence Berkeley National Laboratory under Contract ________________________ with the United States Department of Energy (DOE) and (2) the University has rights to patents and other intellectual property arising from Consultant's services for that work. This consulting agreement is subject to those rights notwithstanding any intellectual property obligations to contrary in this agreement. Whenever any invention or discovery is solely or jointly made, conceived, or developed by Consultant under the consulting agreement, the Company must promptly furnish the University and DOE with sufficient information to timely determine whether the invention or discovery is within the purview of the patent agreement executed by Consultant with the University."
      2. The acknowledgment may be by letter or written agreement. When a consulting or employment agreement containing a claim for invention and patent rights is offered to an employee, the acknowledgment paragraph in the agreement must be reviewed and approved by the IPO before execution of the agreement by the employee.
    10. Questions regarding inventions and patent articles in a proposed consulting agreement should be referred to the IPO.

    E. Roles and Responsibilities

    Managers, supervisors, and employees have the responsibility to adhere to the provisions of this policy.

    F. Definitions/Acronyms

    Term

    Definition

    Conflict of Commitment

    A situation in which an employee engages in an outside professional activity, paid or unpaid, that involves a commitment of time that may interfere, or appear to interfere, with fulfillment of the employee's obligations to Berkeley Laboratory.

    Conflict of Interest

    A situation in which an employee has a private or personal interest sufficient to appear to influence the objective exercise of his or her official duties.

    Foreign Country of Risk

    Any foreign country determined to be of risk by the Office of Science in consultation with the Under Secretary for Science; the Under Secretary of Energy; the Under Secretary for Nuclear Security; and the Office of Intelligence and Counterintelligence. A foreign country of risk is defined as (i) any foreign government or foreign government agency or instrumentality thereof of a foreign country of risk;  (ii) any form of business enterprise or legal entity organized, chartered, or incorporated under the laws of a foreign country of risk; and  (iii) any form of business enterprise or legal entity which is owned, controlled, or influenced by an entity described in sections (info) or (ii) in this definition, or by any foreign national of a foreign country of risk. 

    Foreign Government Talent Recruitment Program

    In general, such programs include any foreign state-sponsored attempt to acquire U.S. scientific-funded research or technology through foreign government-run or funded recruitment programs that target scientists, engineers, academics, researchers, students, and entrepreneurs of all nationalities working or educated in the United States. These recruitment programs are often part of broader whole-of-government strategies to reduce costs associated with basic research while focusing investment on military development or dominance in emerging technology sectors. Distinguishing features of a foreign government talent recruitment program covered by DOE Order 486.1A include:

    • Compensation: Compensation provided by the foreign state to the targeted individual in exchange for the individual transferring their knowledge and expertise to the foreign country. The compensation can take several forms, such as cash, research funding, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration.
    • Recruitment: Recruitment in this context refers to the foreign-state sponsor's active engagement in attracting the targeted individual to join the foreign-sponsored program and transfer their knowledge and expertise to the foreign state. The targeted individual may be employed and located in the U.S. or in the foreign state. Recruitment would not necessarily include any invitation for engagement extended by the foreign state, for example, an invitation to attend or present work at an international conference.
    • Incentives: Many, but not all, programs aim to incentivize the targeted individual to physically relocate to the foreign state. Of particular concern are those programs that allow for continued employment at U.S. research facilities or receipt of DOE research funds while concurrently receiving compensation from the foreign state.

    Other Foreign Government Sponsored or Affiliated Activity

    Includes the following: (1) Employment. (2) Other support, contractual or otherwise, direct and indirect, including current and pending private and public sources of funding or income, both foreign and domestic. For researchers, other support includes all foreign country of risk entity resources made available, directly or indirectly, to a researcher in support of and/or related to all of the researcher's professional R&D efforts, including resources provided directly to the individual rather than through the research institution, and regardless of whether or not they have monetary value (e.g., even if the support received is only in-kind, such as office/laboratory space, equipment, supplies, or employees).This includes resource and/or financial support from all foreign and domestic entities, including but not limited to, gifts, financial support for laboratory personnel, and participation of student and visiting researchers supported by other sources of funding. This further includes compensation, for example, current or promises of future grants, awards, funding, scholarship, appointment, sabbatical, travel, university directed funding, and honoraria. (3) Current or pending participation in or applications to programs (e.g., grant programs) sponsored by foreign governments, instrumentalities, or entities, if not a Foreign Government Sponsored Talent Recruitment Program, as defined. Associated contracts, upon request by the DOE, must be disclosed, in addition to the fact of participation. (4) Positions and appointments, both domestic and foreign, including affiliations with foreign entities or governments. This includes titled academic, professional, or institutional appointments whether or not remuneration is received, and whether full time, part time, or voluntary (including adjunct, visiting, or honorary). (5) The following, considered alone, are not included in this definition: (a) In-kind support under a fundamental research collaboration for the sole purpose of co-authorship to be made publicly available; and (b) Support related specifically to implementing a DOE program-sponsored international collaboration project and within the scope of a DOE-level or U.S. government-level bilateral or multilateral international agreement.

    G. Recordkeeping Requirements

    Records will be kept for at least three years after approval for the activity has expired, or for at least three years after a request has been denied.

    H. Implementing Documents

    I. Contact Information

    Research Compliance Office

    [email protected]

    J. Revision History

    Date

    Revision

    By Whom

    Revision Description

    Section(s) Affected

    Change Type

    1/2/2012

    0

    Stoufer

    Rewrite for wiki (brief)

    All

    Minor

    2/22/2013

    1

    Stoufer

    Rewrite for wiki (policy)

    All

    Minor

    9/8/2016

    1.1

    Stoufer

    Periodic update

    All

    Minor

    1/27/2017

    1.2

    Stoufer

    Clarification

    D.1.d

    Minor

    8/15/2019

    1.3

    Stoufer

    Addition of prohibitions under DOE O 486.1

    All

    Major

    12/10/2020

    1.4

    Stoufer

    Addition of restrictions under DOE O 486.1A, clarification of honoraria

    All

    Major

    12/22/20


    D. Soustin

    I-clause renumbering only as per Contract 31 mod 1105

    SRD

    Editorial

    9/30/2021

    2

    Stoufer

    Revision to add conflict of commitment, clarify requirements re uncompensated activity

    All

    Major

    DOCUMENT INFORMATION

    Title:

    Outside Employment and Consulting

    Document number

    05.01.001.000

    Revision number

    2

    Publication date:

    11/5/2021

    Effective date:

    11/5/2021

    Next review date:

    11/5/2024

    Policy Area:

    Outside Business and Employment

    RPM Section (home)

    Conflict of Interest

    RPM Section (cross-reference)

    Section 10.02

    Functional Division

    Directorate

    Prior reference information (optional)

    Section 10.02

    Source Requirements Documents

    • Contract 31, Clause I.122, DEAR 5203-3, Contractor's Organization (DEC 2000) (SC alternate APR 2018) (prev. I.78)
    • DOE Order 486.1A, Department of Energy Foreign Government Sponsored or Affiliated Activities

    Implementing Documents

    • No labels